<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 7, 1994
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BEVERLY ENTERPRISES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 95-4100309
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1200 SOUTH WALDRON ROAD, NO. 155
FORT SMITH, ARKANSAS 72903
(501) 452-6712
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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ROBERT W. POMMERVILLE
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
1200 SOUTH WALDRON ROAD, NO. 155
FORT SMITH, ARKANSAS 72903
(501) 452-6712
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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THE COMMISSION IS REQUESTED TO SEND COPIES OF ALL COMMUNICATIONS TO:
DON M. PEARSON CHRISTOPHER A. KLEM
RICHARD G. RASMUSSEN ROPES & GRAY
ARGUE PEARSON HARBISON & MYERS ONE INTERNATIONAL PLACE
801 SOUTH FLOWER STREET, SUITE 500 BOSTON, MASSACHUSETTS 02110
LOS ANGELES, CALIFORNIA 90017 (617) 951-7000
(213) 622-3100
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement as
determined in light of market conditions.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the Securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. /X/
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
PROPOSED PROPOSED
SHARES MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT(1) OFFERING PRICE(1) FEE(2)
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Common Stock................................... 1,000,000 $12.82 $12,820,000 $4,421.00
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</TABLE>
(1) Estimated solely for the purpose of computing the registration fee.
(2) Calculated pursuant to Rule 457(c), based upon the average of the high and
low prices reported on the New York Stock Exchange on April 4, 1994.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy
nor shall there be any sale of these securities in any State in which such
offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED APRIL 7, 1994
PROSPECTUS
(BEVERLY
ENTERPRISES BEVERLY ENTERPRISES, INC.
LOGO) 1,000,000 SHARES OF COMMON STOCK
This Prospectus relates to an offering of up to 1,000,000 shares of common
stock, par value $0.10 per share (the "Common Stock"), of Beverly Enterprises,
Inc. ("Beverly" or the "Company") to be offered by the President and Fellows of
Harvard College, a Massachusetts educational corporation (the "Selling
Stockholder"). See "Selling Stockholder." The Selling Stockholder acquired its
shares of Common Stock on January 26, 1994 pursuant to the exercise of option
rights acquired by it on December 23, 1985 from Beverly Foundation, a California
non-profit corporation ("Foundation").
The Company will not receive any proceeds from the sale of the shares of
Common Stock offered hereby. The Company will bear certain expenses (other than
selling commissions and fees and expenses of counsel and other advisors to the
Selling Stockholder), which will be reimbursed to the Company pursuant to an
agreement between the Company and the Foundation.
The Selling Stockholder may sell, from time to time and at any time, the
shares of Common Stock being offered hereby: (i) directly to purchasers; (ii) to
dealers; (iii) to both investors and dealers through a specific bidding or
auction process or otherwise; (iv) through underwriters; (v) through agents; or
(vi) through a combination of any such methods of sale. If a bidding or auction
process is utilized, it will be described in the Prospectus Supplement. See
"Plan of Distribution."
The shares of Common Stock being offered by this Prospectus (the "Shares")
have been approved for listing, upon official notice of issuance, on the New
York Stock Exchange and Pacific Stock Exchange. On April 4, 1994, the closing
sales price of the Common Stock on the NYSE was $12 7/8 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS APRIL , 1994.
<PAGE> 3
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (the "Registration Statement") (of which
this Prospectus is a part) under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the Common Stock. This Prospectus does not
contain all of the information set forth in the Registration Statement, certain
portions of which have been omitted as permitted by the rules and regulations of
the Commission. Statements contained in this Prospectus as to the contents of
any contract or other document are not necessarily complete, and in each
instance reference is made to the copy of such contract or other document filed
or incorporated by reference as an exhibit to the Registration Statement, each
such statement being qualified in all respects by such reference and the
exhibits and schedules thereto. For further information regarding the Company
and the Common Stock, reference is hereby made to the Registration Statement and
such exhibits and schedules which may be obtained from the Commission at its
principal office in Washington, D.C. upon payment of the fees prescribed by the
Commission.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Commission. Such reports, proxy statements and other information filed by the
Company with the Commission in accordance with the Exchange Act can be inspected
and copied at the Commission's Public Reference Section, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the following regional offices of the Commission:
Seven World Trade Center, 13th Floor, New York, New York 10048 and 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can
be obtained from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. In addition, the
Company's Common Stock is listed on the New York and Pacific Stock Exchanges and
similar information concerning the Company can be inspected and copied at the
offices of the New York and Pacific Stock Exchanges.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by the Company with the
Commission and are incorporated herein by reference:
a. Annual Report on Form 10-K for the fiscal year ended December 31,
1993.
b. Current Report on Form 8-K dated January 4, 1994, and as amended on
January 4, 1994.
c. Form 8-A, dated July 26, 1993, containing a description of the
Company's Common Stock, and including any amendment or report filed
for the purpose of updating such description.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date hereof and prior to the
termination of the offering of the Common Stock shall be deemed to be
incorporated by reference in this Prospectus and to be part hereof from the date
of filing such documents.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein,
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein, modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
Copies of all documents which are incorporated herein by reference (not
including the exhibits to such information, unless such exhibits are
specifically incorporated by reference in such information) will be provided
without charge to each person, including any beneficial owner, to whom this
Prospectus is delivered, upon written or oral request. Copies of this
Prospectus, as amended or supplemented from time to time, and any other
documents (or parts of documents) that constitute part of this Prospectus under
Section 10(a) of the Securities Act will also be provided without charge to each
such person, upon written or oral request. Requests should be directed to
Beverly Enterprises, Inc., Attention: Robert W. Pommerville, Esq., 1200 South
Waldron Road, No. 155, Fort Smith, Arkansas 72903, telephone (501) 452-6712.
2
<PAGE> 4
THE COMPANY
Beverly is the largest operator of nursing facilities in the United States.
At January 31, 1994, the Company operated 774 nursing facilities with 82,680
licensed beds. The facilities are located in 34 states and the District of
Columbia, and range in capacity from 20 to 388 beds with average occupancy of
88.6%, 88.4% and 88.2% for the years ended December 31, 1993, 1992, and 1991,
respectively. In addition, at January 31, 1994, the Company operated 23 subacute
units, 41 pharmacies and pharmacy-related outlets, 42 retirement and congregate
living projects containing 2,554 units and five home health care entities.
Beverly was incorporated in Delaware on February 27, 1987, in connection
with a reorganization of its predecessor, Beverly Enterprises, a California
corporation incorporated in 1964, which became a subsidiary of Beverly and
changed its name to Beverly California Corporation ("Beverly California").
References herein to "Beverly" or the "Company" are to Beverly, its subsidiaries
and such predecessor, or to any of them, depending on the context. The Company's
principal executive offices are located at 1200 South Waldron Road, No. 155,
Fort Smith, Arkansas 72903, telephone number (501) 452-6712.
SELLING STOCKHOLDER
The 1,000,000 shares of Common Stock to which this prospectus relates (the
"Shares") may be offered for sale from time to time for the account of the
Selling Stockholder. The Shares constitute 1.20% of the currently outstanding
Common Stock of the Company. The Selling Stockholder does not own any other
shares of Common Stock.
The Selling Stockholder acquired the Shares pursuant to its exercise, on
January 26, 1994, of an option to acquire up to 1,000,000 shares at an exercise
price of $12.00 per share. The option had been granted under a Stock Option
Agreement dated as of January 26, 1984 and transferred to the Selling
Stockholder pursuant to the Stock Option Purchase Agreement dated December 23,
1985 among the Company, the Foundation and the Selling Stockholder. Under the
Stock Option Purchase Agreement, the Selling Stockholder has certain rights to
have the Company register the Shares under the Act, with the expenses of
registration (other than selling commissions and fees and expenses of counsel
and other advisors to the Selling Stockholder) to be reimbursed to the Company
by the Foundation. The Selling Stockholder has exercised those rights in
connection with the offering contemplated hereby.
USE OF PROCEEDS
Any sale of the Common Stock by the Selling Stockholder will be for its own
account. The Company will not receive any of the proceeds from the offering.
PLAN OF DISTRIBUTION
The Selling Stockholder may sell, from time to time and at any time, the
shares of Common Stock being offered hereby: (i) directly to purchasers; (ii) to
dealers; (iii) to both investors and dealers through a specific bidding or
auction process or otherwise; (iv) through underwriters; (v) through agents; or
(vi) through a combination of any such methods of sale. If a bidding or auction
process is utilized, it will be described in the Prospectus Supplement.
Offers to purchase shares of Common Stock may be solicited directly by the
Selling Stockholder or by agents designated by the Selling Stockholder from time
to time. Any such agent which may be deemed to be an underwriter as that term is
defined in the Securities Act of 1933, as amended, involved in the offer or sale
of the shares of Common Stock in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Selling Stockholder to such
agent will be set forth, in a Prospectus Supplement. Unless otherwise indicated
in such Prospectus Supplement, any such agent will be acting on a best efforts
basis.
If a dealer is utilized in the sale of the shares of Common Stock in
respect of which this Prospectus is delivered, the Company will sell such shares
of Common Stock to such dealer, as principal. The dealer may
3
<PAGE> 5
then resell such shares of Common Stock to the public at varying prices to be
determined by such dealer at the time of resale. In the case of a sale to a
dealer, the Prospectus Supplement will state the name of such dealer, the number
of shares purchased and the price paid.
Dealers, underwriters or agents may be entitled under the Stock Option
Purchase Agreement and other agreements which may be entered into with the
Selling Stockholder and the Company to indemnification by the Company against
certain civil liabilities, including liabilities under the Securities Act. Such
dealers, underwriters or agents may engage in transactions with, perform
services for, or otherwise maintain business relationships with the Company or
the Selling Stockholder in the ordinary course of business.
The place and time of delivery for Shares of Common Stock in respect of
which this Prospectus is delivered will be set forth in the accompanying
Prospectus Supplement.
DESCRIPTION OF COMMON STOCK
The following description of the Common Stock sets forth certain general
terms and provisions of the Common Stock. The statements below describing the
Common Stock are in general terms and are in all respects subject to and
qualified in their entirety by reference to the applicable provisions of the
Company's Restated Certificate of Incorporation, as amended, and Amended
By-laws.
The Company has the authority to issue 325,000,000 shares of capital stock,
of which 300,000,000 are Common Stock, par value $.10 per share, and 25,000,000
are Preferred Stock, par value $1 per share. At December 31, 1993, the Company
had outstanding, net of treasury shares, 81,867,600 shares of Common Stock and
3,000,000 shares of Series B Preferred Stock.
Holders of Common Stock are entitled to receive such dividends as are
declared by the Board of Directors, subject to the preference of the Series B
Preferred Stock and any other outstanding Preferred Stock, and are entitled to
cast one vote per share on all matters voted upon by stockholders. There is no
cumulative voting for the election of directors and the Common Stock does not
have any preemptive rights. Upon liquidation of the Company, holders of Common
Stock are entitled to share equally and ratably in any assets available for
distribution to them, after payment or provision for liabilities and amounts
owing with respect to the Series B Preferred Stock and any other outstanding
Preferred Stock. Payment and declaration of dividends on the Common Stock are
subject to certain restrictions if the Company fails to pay dividends on the
Series B Preferred Stock and will be subject to restrictions if the Company
fails to pay dividends on any other series of Preferred Stock ranking prior to
the Common Stock as to the payment of dividends. The Company is subject to
certain restrictions under its banking arrangements related to the payment of
dividends on its Common Stock. The Company has not paid a dividend on its Common
Stock since January 11, 1988.
The Registrar and Transfer Agent for the Common Stock is The Bank of New
York.
LEGAL MATTERS
The legality of the shares of Common Stock offered hereby will be passed
upon for the Company by Argue Pearson Harbison & Myers, Los Angeles, California.
EXPERTS
The consolidated financial statements of Beverly Enterprises, Inc.
appearing in Beverly Enterprises, Inc.'s Annual Report on Form 10-K for the year
ended December 31, 1993 have been audited by Ernst & Young, independent
auditors, as set forth in their report thereon included therein and incorporated
herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
4
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NO DEALER, SALESMAN OR ANY OTHER PERSON IS AUTHORIZED IN CONNECTION WITH
ANY OFFERING MADE HEREBY TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION
OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR
A SOLICITATION OF AN OFFER TO BUY ANY SECURITY OTHER THAN THE SECURITIES OFFERED
HEREBY, NOR DOES IT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY OF THE SECURITIES OFFERED HEREBY TO ANY PERSON IN ANY JURISDICTION IN
WHICH IT IS UNLAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION. NEITHER THE DELIVERY
OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN OR THEREIN IS
CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF OR THEREOF.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information.................. 2
Incorporation of Certain Documents
by Reference......................... 2
The Company............................ 3
Selling Stockholder.................... 3
Use of Proceeds........................ 3
Plan of Distribution................... 3
Description of Common Stock............ 4
Legal Matters.......................... 4
Experts................................ 4
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</TABLE>
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BEVERLY ENTERPRISES, INC.
1,000,000 SHARES
OF
COMMON STOCK
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PROSPECTUS
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<PAGE> 7
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the issuance and distribution of
the securities being registered, other than underwriting discount, are as
follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee..................... $ 4,421.00
Printing and engraving expenses......................................... 7,500.00
Legal fees and expenses................................................. 12,000.00
Miscellaneous........................................................... 1,079.00
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Total......................................................... $25,000.00
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</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law provides that a
director, officer, employee or agent of a corporation (i) must be indemnified by
the corporation for all expenses actually and reasonably incurred in connection
with any action, suit or proceeding when such individual is successful on the
merits or otherwise in such litigation or proceedings, (ii) may be indemnified
by the corporation for the expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred in any action, suit or proceeding
(other than any action by or in the right of the corporation, which hereinafter
will be referred to as a "derivative action") even if such individual is not
successful, if he acted in good faith and in a manner such individual reasonably
believed to be in or not opposed to the best interests of the corporation (and,
in the case of a criminal proceeding, had no reasonable cause to believe his
conduct was unlawful), and (iii) may be indemnified by the corporation for
expenses actually and reasonably incurred in a derivative action, even if such
individual is not successful, if he or she acted in good faith and in a manner
such individual reasonably believed to be in or not opposed to the best
interests of the corporation, provided that indemnification may not be made in
the case of derivative actions if the director or officer is adjudged liable to
the corporation, unless and only to the extent the court determines that,
despite such adjudication but in view of all of the circumstances, such
individual is duly and reasonably entitled to indemnification of such expenses.
The indemnification described in (ii) and (iii) above may be made only upon a
determination by (i) a majority of a quorum of directors who are not parties to
such action, suit or proceeding, (ii) under certain circumstances, independent
legal counsel, or (iii) the stockholders, that indemnification is proper because
the applicable standard of conduct is met. Expenses incurred by a director or
officer in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be advanced by the corporation prior to the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such director or officer to repay such expenses if it is
ultimately determined that the individual is not entitled to be indemnified in
connection with the proceeding to which the expenses relate. Under Section 145,
except in the case in which a director or officer is successful on the merits or
otherwise, indemnification is discretionary.
The Restated Certificate of Incorporation and the Amended By-Laws of
Registrant and the indemnification agreements between Registrant and its
officers and directors (the "Indemnification Agreements") contain provisions
regarding the indemnification of officers and directors.
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<PAGE> 8
The Restated Certificate of Incorporation of Registrant states:
ARTICLE XIII
The Corporation shall indemnify to the full extent permitted by law (such
as it presently exists or may hereafter be amended) any person made, or
threatened to be made, a defendant or witness to any action, suit or proceeding
(whether civil, criminal, administrative or investigative), by reason of the
fact that such person is or was a director or officer of the Corporation or by
reason of the fact that such director or officer, at the request of the
Corporation, is or was serving any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, in any capacity.
Any amendment, repeal, or modification of the foregoing paragraph shall not
adversely affect any right or protection of such person existing hereunder with
respect to any act or omission occurring prior to such amendment, repeal, or
modification.
The Amended By-Laws of Registrant state:
ARTICLE VI
INDEMNIFICATION
Section 1. Right to Indemnification. The Corporation shall indemnify and
hold harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he or she, or a person for whom he or
she is the legal representative, is or was a Director or Officer of the
Corporation (or a Director or Officer of Beverly Enterprises, a California
corporation ("Beverly California"), prior to the merger of Beverly Merger, Inc.,
a subsidiary of the Corporation organized under California law, into Beverly
California) or is or was serving at the request of the Corporation as a
Director, Officer, employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust, enterprise, or nonprofit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses reasonably incurred by such person. The Corporation shall
indemnify a person in connection with a proceeding initiated by such person only
if the proceeding was authorized by the Board of Directors of the Corporation.
Section 2. Prepayment of Expenses. The Corporation shall pay the expenses
incurred in defending any proceeding in advance of its final disposition,
provided, however, that the payment of expenses incurred by a Director or
Officer in his or her capacity as a Director or Officer in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking
by the Director or Officer to repay all amounts advanced if it should be
ultimately determined that the Director or Officer is not entitled to be
indemnified under this Article or otherwise.
Section 3. Claims. If a claim for indemnification or payment of expenses
under this Article VI is not paid in full within ninety (90) days after a
written claim therefor has been received by the Corporation, the claimant may
file suit to recover the unpaid amount of such claim and, if successful in whole
or in part, shall be entitled to be paid the expense of prosecuting such claim.
In any such action the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification or payment of
expenses under applicable law.
Section 4. Nonexclusivity of Rights. The rights conferred on any person by
this Article VI shall not be exclusive of any other rights which such person may
have or hereafter acquire under any statute, provision of the Restated
Certificate of Incorporation of the Corporation, these By-Laws, agreement, vote
of stockholders or disinterested directors or otherwise.
Section 5. Contracts and Arrangements. The Corporation may enter into
contracts providing indemnification to the full extent authorized or permitted
by the General Corporation Law of the State of Delaware and may create a trust
fund, grant a security interest and/or use other means (including, without
limitation, letters
II-2
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of credit, surety bonds and other similar arrangements) to ensure the payment of
such amounts as may become necessary to effect indemnification pursuant to such
contracts or otherwise.
Section 6. Amendment or Repeal. Any repeal or modification of the foregoing
provisions of this Article VI shall not adversely affect any right or protection
of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
The Indemnification Agreements provide (a) for indemnification to the
fullest extent permitted by law against any and all expenses (including
attorneys' fees and all other costs and obligations of any nature whatever),
judgments, fines, penalties and amounts paid in settlement (including all
interest, assessments and other charges paid or payable in connection therewith)
of any claim, unless a person or body appointed by Registrant's Board of
Directors (or, under certain circumstances discussed below, Independent Legal
Counsel) determines that such indemnification is not permitted under applicable
law; (b) for the prompt advancement of expenses to the director or officer,
including attorneys' fees and all other costs, fees, expenses and obligations
paid or incurred in connection with investigating, defending, being a witness or
participating in, or preparing to defend, be a witness in or participate in any
threatened, pending or completed action, suit or proceeding, alternate dispute
resolution mechanism or any inquiry, hearing or investigation related to the
fact that such director or officer is or was a director, officer, employee,
agent or fiduciary of Registrant or is or was serving at the request of
Registrant as a director, officer, employee, trustee, agent or fiduciary of
another corporation, partnership, joint venture, employee benefit plan, trust or
other enterprise, and for repayment to Registrant if it is found that such
director or officer is not entitled to such indemnification under applicable
law; (c) a mechanism through which the director or officer may seek court relief
in the event Registrant's Board of Directors (or other person or body appointed
by such Board) determines that the director or officer would not be permitted to
be indemnified under applicable law (and therefore is not entitled to
indemnification under the Indemnification Agreement); (d) indemnification
against expenses (including attorneys' fees) incurred in seeking to collect from
Registrant an indemnity claim or advancement of expenses to the extent
successful; (e) that after a change in control of Registrant, all Registrant
determinations regarding a right to indemnity and the right to advancement of
expenses shall be made by Independent Legal Counsel (as defined in the
Indemnification Agreements) to be selected by the director or officer and
approved by the Board (which approval cannot be unreasonably withheld); and (f)
Registrant may create a trust fund, grant a security interest and/or use other
means (including, without limitation, letters of credit, surety bonds and other
similar agreements) to ensure payment of indemnifiable amounts.
Among other things, the Indemnification Agreements provide the indemnified
directors and officers with a specific contractual assurance that the rights to
indemnification currently provided to them will remain available, regardless of,
among other things, any amendment to or revocation of the indemnification
provisions in the Restated Certificate of Incorporation or the Amended By-Laws
or any change in composition or philosophy of Registrant's Board of Directors
such as might occur following an acquisition or change in control of Registrant.
The Indemnification Agreements ensure, in the event of a change of control, that
a determination of whether a director or officer is entitled to indemnification
and advancement of expenses will not be made by a possibly hostile board. If
court assistance to obtain such indemnity is required, the director or officer
can receive indemnity against costs incurred in pursuing his or her rights to
indemnification. In addition, the Indemnification Agreements guarantee to
directors and officers that they will realize the benefit of any subsequent
changes in Delaware law relating to indemnification.
The Indemnification Agreements impose upon Registrant, if a change in
control has occurred, the burden of proving that the director or officer is not
entitled to indemnification in any particular case, and the Indemnification
Agreements negate certain presumptions which might otherwise be drawn against a
director or officer in connection with the termination of actions in certain
circumstances. The Indemnification Agreements also provide that a director's or
officer's rights thereunder are not exclusive of any other rights he or she may
have under Delaware law, directors' and officers' insurance, the Restated
Certificate of Incorporation, the Amended By-Laws or otherwise; however, the
Indemnification Agreements do prevent double payment. Notwithstanding the above
discussion, all terms and rights under the Indemnification Agreements exist only
to the extent permitted by applicable law.
II-3
<PAGE> 10
Registrant has in force directors' and officers' liability and company
reimbursement insurance covering liability for error, misstatement, misleading
statement, act or omission, and neglect or breach of duty claimed against them
solely by reason of their being directors or officers of Registrant.
ITEM 16. EXHIBITS
(a) Exhibits
<TABLE>
<S> <C>
5.1 Opinion of Argue Pearson Harbison & Myers as to the legality of the
shares of Common Stock registered hereunder
23.1 Consent of Ernst & Young
23.2 Consent of Argue Pearson Harbison & Myers (included in its opinion filed
as Exhibit 5.1)
24.1 Power of Attorney of Beverly's Directors and Officers (incorporated in
the Signature Page on page II-6 in this Registration Statement)
</TABLE>
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the Registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
Registrant pursuant to the foregoing provisions, or otherwise,
II-4
<PAGE> 11
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by Registrant of expenses
incurred or paid by a director, officer or controlling person of Registrant in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(d) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-5
<PAGE> 12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fort Smith, State of Arkansas on March 31, 1994.
BEVERLY ENTERPRISES, INC.
By: DAVID R. BANKS
David R. Banks
Chairman of the Board,
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints David R. Banks, Schuyler Hollingsworth, Jr. and
Robert W. Pommerville, and each or any of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- ------------------------------- --------------
<S> <C> <C>
DAVID R. BANKS Chairman of the Board, March 31, 1994
David R. Banks President, Chief Executive
ROBERT D. WOLTIL Officer and Director
Robert D. Woltil Executive Vice President, March 31, 1994
Finance and Chief Financial
Officer
SCOTT M. TABAKIN Vice President, Controller and March 31, 1994
Scott M. Tabakin Chief Accounting Officer
CURT F. BRADBURY Director March 31, 1994
Curt F. Bradbury
LOUIS W. MENK Director March 31, 1994
Louis W. Menk
JAMES R. GREENE Director March 31, 1994
James R. Greene
BERYL F. ANTHONY, JR. Director March 31, 1994
Beryl F. Anthony, Jr.
JON E.M. JACOBY Director March 31, 1994
Jon E.M. Jacoby
WILL K. WEINSTEIN Director March 31, 1994
Will K. Weinstein
</TABLE>
II-6
<PAGE> 1
ARGUE PEARSON HARBISON & MYERS
ATTORNEYS AT LAW
JOHN C. ARGUE 801 SOUTH FLOWER STREET
DON M. PEARSON * LOS ANGELES, CALIFORNIA 90017-4000
STEPHEN F. HARBISON (213) 622-3100
WILLIAM A. JONES -----------
JERRY K. STAUB TELEFAX
DOUGLAS F. GALANTER (213) 622-7575
ANTHONY M. VIENNA -----------
THOMAS R. SCHALOW OF COUNSEL
PHILIP J. KAPLAN JOSEPH H. LAZARA
TODD DANIEL BELD -----------
RICHARD G. RASMUSSEN LOUIS W. MYERS
PATRICIA VENEGAS (1943-1993)
SCOTT A. CHAPLAN OUR FILE NUMBER
---------
* A LAW CORPORATION
April 5, 1994
Beverly Enterprises, Inc.
1200 South Waldron Road
No. 155
Fort Smith, Arkansas 72903
RE: 1,000,000 SHARES OF COMMON STOCK
Gentlemen:
At your request, we have examined the Registration Statement on Form
S-3 (the "Registration Statement") to be filed by Beverly Enterprises, Inc.
(the "Company") with the Securities and Exchange Commission in connection with
the registration of 1,000,000 shares of Common Stock to be sold in a secondary
offering by the President and Fellows of Harvard College, a Massachusetts
Educational Corporation as the selling stockholder.
We are advised that the selling stockholder acquired the shares
pursuant to its exercise, on January 26, 1994, of an option to acquire up to
1,000,000 shares at an exercise price of $12.00 per share. The option had been
granted under a Stock Option Agreement dated as of January 26, 1984 and
transferred to the selling stockholder pursuant to the Stock Option Purchase
Agreement dated December 23, 1984 among the Company, Beverly Foundation and the
selling stockholder. Under the Stock Option Purchase Agreement, the selling
stockholder had certain rights to have the Company register the shares, which
rights have been exercised.
At such time as (a) the pertinent provisions of the 1933 Act and such
"blue sky" and securities laws as may be applicable have been complied with,
and (b) the certificates representing the Common Stock have been duly executed,
countersigned, registered, and delivered against payment therefor as
contemplated in the Registration Statement, the Common Stock will be legally
issued, fully paid, and non-assessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ ARGUE PEARSON HARBISON & MYERS
Argue Pearson Harbison & Myers
EXHIBIT 5
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Beverly
Enterprises, Inc. for the registration of $1,000,000 shares of its common stock
and to the incorporation by reference therein of our report dated February 4,
1994, with respect to the consolidated financial statements and schedules of
Beverly Enterprises, Inc. included in its Annual Report (Form 10-K) for the
year ended December 31, 1993, filed with the Securities and Exchange Commission.
ERNST & YOUNG
Little Rock, Arkansas
April 1, 1994
